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Residential Landlord and Tenant (Ontario) Legal Guide
Chapter 4 - Termination Fundamentals
(01 September 2020)
Caution
- Overview
(a) General
(b) Basic Principles
Clarification
(c) Abandonment
. Overview
. Re-Possession and Application to Terminate
. No Arrears of Rent Claims on Abandonment
. Tenant Property After Abandonment
(d) Death of the Tenant
. Overview
. Preservation of Tenant Property On Death
. Disposal of Property
. Property Claims by Estate or Family
(e) Tenants in Condominiums
- Notices of Termination
(a) Overview
(b) Requirements Common to All Notices of Termination
(c) Date of Termination
(d) Notice Periods for "Regular Terminations"
. Clarification of Concepts
. Daily or Weekly Periodic Tenancies
. Monthly Periodic Tenancies
. Term Tenancies
. Note re February and March Terminations
(e) Expiration of Notice of Termination
- Tenant Terminations and "Agreements to Terminate"
(a) Overview
(b) Notices of Termination by Tenant
. General
. Periodic Tenancies
. Term Tenancies at End of Term
. Terminating a Tenancy During Term ("Breaking a Lease")
(c) Agreements to Terminate
(d) Pre-Obtained Tenant "Notices of Termination" and "Agreements to Terminate" Are Void
(e) Landlord's Applications to Terminate and Evict Based on Tenant's Notice to Terminate or Agreements to Terminate
. Overview
. Comment on "Without Notice" Rule
. When Such Application May be Made
. Application Procedure
. Ex Parte Orders
. Motion to Set Aside
(f) Tenant Applications Involving Termination
- General Landlord Terminations and Eviction Procedures
Caution
(a) Overview
(b) Landlord-Specific Notice of Termination Requirements
(c) Regular and Early Terminations
. Overview
. "Regular" Terminations
. "Early" Termination for Cause
(d) When to Commence Application to Board
. General Rule
. Where "Remedial Oppourtunity" Applies
. 'Non-Payment of Rent' Applications
(e) Application Documentation
(f) Eviction Orders
. Effective Date
. Expiry
(g) Non-Waiver
(h) Ancillary Landlord Remedies: Arrears of Rent and Overhold Rent
. Overview
. Procedure
. "Tenant Rights" Defence
. Settlement Orders
Caution
Readers are cautioned that whenever they are dealing with an actual termination and eviction proceeding that it is important to review the relevant parts of this Legal Guide thoroughly. For instance, this chapter only deals with basic issues and concepts involved in such proceedings. Reading it alone would ignore the law that applies to the particular ground of termination that most terminations (and all landlord terminations) must be grounded on (covered in either Chapters 5,6 or 7).
Further, anyone defending termination and eviction proceedings before the Board would be remiss if they did not also review Ch.9: "Board and Other Proceedings" to understand basic procedural aspects of handling a case before the Board, such as service of documents, disclosure of evidence, basic evidence rules, basic hearing procedure, etc.
You never know what other issues can crop up in a case. Anyone using this Legal Guide for important things should devote the time and effort required to appreciate the law involved in their situation and the complexities that it can give rise to.
Note Re: Special and Exempt Premises:
Some residential rental premises - such as care homes, mobile home parks, land lease communities, student accomodation, superintendent's premises, social housing, premises under mortgage proceedings - and others - may be exempt from all or part of the Residential Tenancies Act, or may be subject to special RTA provisions. Readers should review Ch.2: "Special and Exempt Premises" to check if this is the case for their specific premises.
Note Re: Offences
Many breaches of the Residential Tenancies Act are also prosecutable offences. Readers may want to review Ch.17: "Offences" regarding specific breaches
1. Overview
(a) General
This chapter is about the legal fundamentals of terminating a tenancy, whether initiated by landlord or tenant.
Covered are issues around abandonment, death of a tenant, Notice of Termination and Agreements to Terminate. Also covered here are landlord-initiated termination and eviction proceedings, which form the majority of applications to the Landlord and Tenant Board (the "Board"). Landlord remedies commonly associated with such proceedings - particularly for rent arrears and "overhold" rent - are also explained here.
Landlord termination procedures categorized and explained by the reason or "cause" for termination are dealt with in Ch.5: "Regular Landlord Terminations", Ch.6: "Early Landlord Termination for Cause" and Ch.7: "Non-Payment of Rent Termination". Chapter 8: "Other Termination Procedures" addresses miscellaneous termination-related issues such as unauthorized occupancy of premises, sub-tenant evictions, proceedings on breach of mediated settlement and tenant property. Chapter 9 is devoted to a tenant's defence to such termination proceedings.
Readers should also note that termination proceedings can also arise in relation to such wide issues as non-repair by the landlord, several violations of tenant rights, refused sublet or assignment consents, unauthorized assignment, overholding subtenants, and others. These are discussed throughout this Isthatlegal.ca Legal Guide as they arise in relation to those issues.
General Board procedures which apply to applications of all types are set out in Ch.13: "General Board Proceedings".
(b) Basic Principles
It is a basic premises of modern Ontario residential tenancy law that a residential tenancy may only be terminated "in accordance with this Act" (ie. the Residential Tenancies Act or "RTA") [Act s.37(1)].
Legal methods of termination recognized under the RTA include:- voluntary leaving by the tenant after Notice of Termination is given, or pursuant to an Agreement to Terminate ("vacating") [Act s.37(2)];
- voluntary leaving without Notice of Termination having been given ("abandonment") [see s.1(c), below];
- death of the tenant [see s.1(d), below];
- Board order (after landlord's notice or an agreement to terminate).
It follows that - except in cases of death, vacating or abandonment - physical "re-possession" of the rented premises (ie. eviction of the tenant) may not be recovered except by Board order both terminating the tenancy and ordering the "eviction" of the tenant [Act s.39]. To clarify, there is no landlord right to a "self-help" eviction. That is, a landlord getting the termination order and then physically evicting the tenant themselves is illegal. Eviction can only be "executed" by the local sheriff's office [Act s.85; see Ch.14, s.7: "Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement"]. Clarification
The legal requirement for a Board Order "terminating" the tenancy can be confusing given that it is almost always based on the earlier service of a "Notice of Termination" on the tenant, with a specified "date of termination". The necessity of both terminations can leave people doubtful of exactly when in law the tenancy has been terminated. To be accurate, a "Notice of Termination" should properly be entitled "Notice of Proposed Termination".
If it helps, think of the Board application as seeking a Order 'confirming' the Notice of (Proposed) Termination. If the application 'confirms' the termination then it is given full legal effect. Case Note: Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin
In Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin (Div Ct, 2020) the Divisional Court made the deceptively important point that an illegally-evicted tenant is still legally a tenant:[11] An important feature of the Act is security of tenure for tenants. Subsection 37(1) stipulates that a tenancy may only be terminated in accordance with the Act. Importantly for purposes of the present appeal, s. 39 states that a landlord can only recover possession of a rental unit subject to a tenancy if the tenant has vacated or abandoned the rental unit, or the Board has made an order evicting the tenant.
...
[75] The appellant makes much of the fact that the Ministry has now assigned JJ to the respondent’s room. However, JJ is not in physical possession of the room. Indeed, the respondent is still the lawful tenant of that room, given that his tenancy has not been terminated in accordance with the Act. In making the order, the Board member considered the interests of JJ, but reasonably concluded that the respondent should be reinstated, given that there has been no lawful termination of his tenancy, there is no danger of violence nor safety issues because of his conduct if he returns, and JJ is not in possession of the room. (c) Abandonment
. Overview
When a tenant who is in arrears of rent, [Act s.2(3)] leaves rented premises without themselves or the landlord having given a Notice of Termination to the other - and not subsequent to an Agreement to Terminate [see s.3(c), below] - then they have "abandoned" the premises.
The Board's perspective on abandonment issues (in particular as to when a unit may be considered abandoned) is set out in Interpretation Guideline 4, linked here. This should be reviewed carefully by anyone involved in such a situation:
Interpretation Guideline 4: Abandonment of a Rental Unit
. Re-Possession and Application to Terminate
Strictly speaking, a landlord is entitled to retake possession of formerly rented premises after an abandonment without the need for a Board order terminating the tenancy [Act s.39].
However - where the issue of abandonment is unclear - a landlord (to be safe) may make an Application to the Board for an order terminating the tenancy (thus confirming the abandonment) [Act s.79]. The following form is used for this purpose:
Form L2: Application To Terminate a Tenancy and Evict a Tenant
. No Arrears of Rent Claims on Abandonment
The general "ancillary" order provisions [see s.4(g), below], which are normally used to claim arrears, overhold compensation, NSF cheque fees, etc in combination with a landlord's Application to terminate and evict - are not available on an abandonment, as they only apply where the tenant is in possession of the premises [Act s.87(1)(b)].
As such, while a landlord may apply to the Board for an order terminating the tenancy [under s.79, discussed above], they must pursue arrears of rent claims in civil court - almost always the Small Claims Court [see Ch.16: "Civil Remedies"].
. Tenant Property After Abandonment
Treatment of a tenant's property left in the premises after abandonment is dealt with in Ch.8, s.4(c): "Other Termination Procedures: Tenant Property: Tenant Property After Abandonment".
(d) Death of the Tenant
. Overview
By operation of RTA law, tenancies terminate 30 days after the death of the tenant [Act s.91(1)].
Of course, in the common situation of a "co-tenancy", the surviving tenant/s continues the tenancy. Readers should not assume without examination that they are 'not a tenant' only because their name is not on a written lease, or because there is no written lease. Written leases are not the only form of lease, as the establishment of a landlord/tenant relationship may be "written, oral or implied". A tenancy relationship may be - and often is - evidenced only by a landlord's behaviour in treating the individual as a 'full' tenant [see Ch.1, s.3(h): "Fundamentals: Landlords, Tenants and Their Legal Variations: Tenant Summarized"].
Further, there are specific provisions governing the assumption of the tenancy by a co-resident surviving spouse of a deceased tenant (even if they are not held to be a co-tenant). These are explained in Ch.1, s.4: "Fundamentals: Spousal Assumption of Tenancy on Death or Abandonment".
. Preservation of Tenant Property On Death
After the death of the last (or only) tenant, the landlord is obliged to preserve their property for the 30 days it takes for the tenancy to terminate (as above), except for "property that is unsafe or unhygienic", which may be disposed of immediately [Act s.91(2)].
During this time the landlord must give the executor (if a will exists) or administrator (if not) of deceased tenant's estate, or their family (otherwise) "reasonable access to the rental unit and the residential complex for the purpose of removing the tenant's property." [Act s.91(2)].
. Disposal of Property
Upon termination of the tenancy as above [ie. after the 30 days are up] "(t)he landlord may sell, retain for the landlord's own use or otherwise dispose of property" [Act s.92(1)(b)]. Of course, the landlord and the executor or administrator of the deceased's estate may make other arrangements regarding disposal of the deceased's property [Act s.92(5)].
A landlord has no civil liability to the anyone for dealing with a deceased tenant's property in accordance with these provisions [Act s.92(2)] (except potentially where the landlord and the executor or administrator of the deceased's estate have made other arrangements regarding disposal of the deceased's property and a dispute arises over within those arrangements) [Act s.92(5)].
. Property Claims by Estate or Family
If the tenant's estate or family, within six months after death, claims tenant property which the landlord has since sold, then the landlord shall pay them the proceeds of the sale, minus deductions for arrears of rent and "the landlord's reasonable out-of-pocket expenses for moving, storing, securing or selling the property" [Act s.92(3)].
Similarly, if the tenant's estate or family, within six months after death, claims tenant property which the landlord has retained for the landlord's own use, the landlord shall return it to them [Act s.92(4)].
(e) Tenants in Condominiums
The fact that a rental unit is a condominium has no effect on the application of the RTA's termination and eviction provisions [Condominium Act, s.4(2,3)], other than the fact that in some circumstances they can be subject to some specific forms of termination and eviction procedure [see Ch.5, s.2: "Personal and Purchaser Possession" and s.8 "Condominium Purchase Fall-Through"].
2. Notices of Termination
(a) Overview
Keeping in mind [from the "Clarification" note, above] the distinction between a (proposed) 'termination' by Notice of Termination and a (real) 'termination' by Board Order, this section deals with "Notices of Termination" - and discusses requirements common to both landlord and tenant-initiated Notices of Termination.
Only Board-approved forms may be used for Notices of Termination (thus of course necessitating that they be in written form) [Act s.43(1)]. These forms are linked individually as appropriate throughout this Isthatlegal.ca Legal Guide in the specific discussions of the various termination types.
For service requirements respecting Notices of Termination, see Ch.13, s.8: "General Board Procedures: Service and Filing of Documents".
(b) Requirements Common to All Notices of Termination
The following basic elements are required in all Notices of Termination (though more elements may be required depending on the type of termination being initiated) [Act s.43(1)]:- identification of the rental unit for which the notice is given;
- the (proposed) "date of termination", and
- the signature of the person giving the notice, or of the person's agent.
Note:
Care should be taken to review the full discussions (below) of each specific type of termination to ascertain what additional elements need be present in the Notice of Termination. In this regard it is almost always safe to rely in the Board-issued forms which must be used for these purposes. (c) Date of Termination
As noted above, all Notices of Termination require the specification of a 'date of termination'. While it is a basic requirement that the "date of termination" specified in the Notice of Termination may not be before the required "notice period" has expired (ie. the time between the date of service of the Notice and the "date of termination") [see s.2(d), below], there are some more rules about when a "date of termination" may be set.
"When" (on the calendar) a date of termination may be set in the Notice generally falls into one of two categories:- Regular Termination
The "date of termination" must correspond to the "natural" end or cycle of a tenancy, which is at the end of the "period" of a periodic tenancy, or the end of "term" of a term tenancy, as applicable [see Ch.1, s.2(e): "Fundamentals: Formation of a Tenancy: Periodic v Term Tenancies" for an explanation of these basic concepts]. Most tenant terminations, and all landlord terminations discussed in Ch.5 ["Regular Landlord Terminations"] fall into this category.
- Early Termination
In this case, the "date of termination" may fall on any date after the required notice period expires, regardless of the date at which the period or term ends.
The specific legal "dates of termination" and "notice periods" that apply to each of these many types of termination are explained in the discussions of those specific types of termination [see Chapters 5, 6 and 7].
(d) Notice Periods for "Regular Terminations"
. Clarification of Concepts
A periodic tenancy is one that automatically and repeatedly renews for standard time periods (usually monthly) until it is legally terminated (ie. by Notice, Agreement, abandonment, Board order, etc).
A term tenancy is distinguished from a periodic tenancy as it - by the agreement of the parties - runs for a fixed period (commonly a year). At common law, term tenancies expired at the end of their "term" by operation of law and the landlord was entitled to take possession. However that law is significantly modified by the RTA, which - despite the 'natural end' of a term tenancy - gives the tenant a statutory "automatic renewal" right to stay in possession and thereby have the tenancy continue as a "deemed" monthly periodic tenancy [Act s.38(1)].
. Daily or Weekly Periodic Tenancies
The notice period (ie. the amount of time between Notice of Termination being served and the stated date of termination) for a daily or weekly periodic tenancy is (at least) 28 days.
Further, the date of termination must coincide with the "last day of a rental period" [Act s.44(1)]. Except in rare cases (where rent is paid other than at the beginning of a rental period), the date of termination is almost always the day before the day that the rent is due.
. Monthly Periodic Tenancies
The notice period (ie. the amount of time between Notice of Termination being served and effective legal "date of termination" of the tenancy) for a monthly periodic tenancy is (at least) 60 days.
Further (as noted above), the date of termination must coincide with the "last day of a rental period" [Act s.44(2)]. Except in rare cases (where rent is paid other than at the beginning of a rental period), the date of termination is almost always the day before the day that the rent is otherwise due.
. Term Tenancies
The notice period (ie. the amount of time between Notice of Termination being served and the stated legal termination of the tenancy) for any type of term tenancy is (at least) 60 days.
Further, the date of termination must coincide with the "last day of a yearly period on which the tenancy is based" for annual term tenancies [Act s.44(3)], or the "expiration date specified in the tenancy agreement" for term tenancies of any other length [Act s.44(4)].
. Note re February and March Terminations
In order to accomodate February having only 28 days (or 29 in a leap year) the notice period for a monthly periodic tenancy or a term tenancy (of any duration) with a date of termination at the end of either February or March will be deemed to be 60 days, as long as the Notice of Termination was given at the beginning of the applicable month (ie. at 01 January or 01 February) [Act s.44(5)].
(e) Expiration of Notice of Termination
All Notices of Termination expire (and are void) 30 days after the date of termination specified in the Notice except where any of the following apply [Act s.46]:- the tenant vacates the rental unit before that date;
- the landlord has applied (not 'obtained') for a Board Order terminating and evicting the tenant before that date;
- where they are based on an allegation of non-payment of rent.
Note:
A careful reading of Act s.46(2) [which reads "failure to pay rent"' suggests that a similar time-extending exception exists for "persistently failed to pay rent on the date it becomes due and payable" [Act s.58; discussed in Ch.5, s.5: "Regular Landlord Terminations: Persistent Failure to Pay Rent on Time"], however the Board's Notice and Application forms do not reflect this possibility.
3. Tenant Terminations and "Agreements to Terminate"
(a) Overview
Unlike most landlord-initiated terminations, tenants do not usually have to have a legal 'cause' for terminating a tenancy.
One practical reason for this is that the turning over of possession by a tenant can be achieved by the simple act of leaving the rental unit. Whether such 'leaving' is done with proper notice ("vacating") or without ("abandonment"), it still has the legal effect of returning possession of the premises to the landlord [Act s.37(2), 39 and 47].
That said, the giving of proper Notice of Termination also terminates the tenant's duty to pay on-going rent (which can survive after abandonment in the form of the landlord's claim for "damages" for unpaid rent). Abandoning the premises (which includes most situations where a tenant gives improper Notice of Termination) can leave the tenant with residual legal liability for unpaid rent for (what would have been) the proper notice period (periodic tenancies) or the balance of the term (term tenancies), as the case may be [see Ch.16: "Civil Remedies"]. Because of this, it is important for a tenant to ensure that their relationship with the landlord is properly wrapped-up or "terminated".
The two main methods for a tenant to legally terminate a tenancy are explained below:- Notice of Termination (by tenant), and
- Agreement to Terminate (between landlord and tenant).
If a tenant does not vacate the premises after giving Notice of Termination or an Agreement to Terminate, Board applications are available to landlords to confirm the termination and obtain an eviction order. These are also explained in this section, below.
Note that there are some circumstances where a tenant can apply to the Board for orders of 'termination' of a tenancy - and even an 'eviction' order using essentially the same process that landlords use. Such orders are ancillary to tenant applications to enforce "tenant's rights" [see Ch.3, s.5: "Tenant Rights, Responsibilites and Remedies: Tenant Rights Applications"]. These procedures are also discussed peripherally in this section.
The rare situation of a "main" tenant in a sub-let situation seeking to evict their 'sub-tenant' is explained in Ch.8, s.2: "Other Termination Procedures: Application to Evict an Overholding Sub-tenant".
(b) Notices of Termination by Tenant
. General
Termination by a tenant is available without the necessity of having a "cause" or "reason" and is usually a simple matter of serving proper Notice of Termination, effective at the end of period or term of the tenancy (as applicable).
Form N9: Tenant's Notice to Terminate the Tenancy
Service rules for Notices of Termination are explained in Ch.13, s.8: "General Board Procedures: Service and Filing of Documents".
. Periodic Tenancies
In the case of a "periodic" tenancy [see s.2(d): "Notice Periods for Regular Terminations: Clarification of Concepts"] above, a standard form Notice of Termination with the following details is sufficient:- the unit and address of the rental unit;
- the signature of the person giving the notice, or of the person's agent; and
- a legal "date of termination".
A legal "date of termination" must fall at the end of a "period" of the tenancy and cannot be set before the required notice period expires.
For daily of weekly periodic tenancies the notice period is 28 days, and for monthly periodic tenancies it is 60 days. Note the special rule for February and March terminations of monthly periodic tenancies [see s.2(d) "Notice Periods for Regular Terminations, above].
. Term Tenancies at End of Term
Of course, in the case of a "term" tenancy the tenant must normally wait until close to the end of the "term" to serve a Notice of Termination [otherwise read "Breaking a Lease", below].
That said, tenants will often overlook proper termination of a term tenancy - even at the end of term, thinking that the termination is 'automatic' in the nature of the agreement (ie. when the "term" expires).
However, due to the 'automatic renewal' provisions applicable to 'expiring' term tenancies [see s.2(d): "Notice of Termination: Notice Periods for "Regular Terminations: Clarification of Concepts", above], a cautious tenant who actually wishes to terminate a term tenancy should not just rely in the expiry of time. Rather they should actively prepare and serve proper Notice of Termination on the landlord. Without this the "automatic renewal" provisions will kick in to create a statutory monthly periodic tenancy - even if the tenant does not overhold past the end of term [Act s.38(1)], technically leaving the tenant with residual civil liability for unpaid rent [see Ch.9, s.18: "Board and Other Procedures: Civil Claims"].
While many landlords will not expect such a formality, serving proper Notice of Termination is a safer course which should eliminate any residual liability exposure against the tenant for unpaid rent.
"Notice of Termination" requirements for a term tenancy are the same as termination of a periodic tenancy (above) except that the date of termination must fall at the end of term. Applicable notice periods are set out in s.2(d): Notice Periods for Regular Terminations: Term Tenancies", above. Again, note the special rule for February and March terminations.
. Terminating a Tenancy During Term ("Breaking a Lease")
In the common situation where a tenant wishes to terminate a term tenancy during the term (ie. before the term ends), the key thing to remember is that simple "abandonment" of the premises - while formally 'terminating' the tenancy agreement - still leaves the tenant open to a claim by the landlord for unpaid rent over the life of the term tenancy [see Ch.16: "Civil Remedies"].
To protect against this liability, several options - all involving some degree of landlord consent - are available:- Agreements to Terminate (see immediately below)
- subletting [see Ch.1, s.5: "Fundamentals: Subletting, Assignments and Similar Arrangements"]
- assignment [see Ch.1, s.5: "Fundamentals: Subletting, Assignments and Similar Arrangements"].
(c) Agreements to Terminate
As noted above, landlords and tenants can - subject to some exceptions - enter into an Agreement to Terminate a tenancy.
Form N11: Agreement to Terminate a Tenancy
Such Agreements, if legitimate (see below) and properly prepared, avoid the operation of the automatic renewal provisions of the RTA - and avoid any additional liability of the tenant for unpaid rent where there is still time to run in a "term" tenancy (as above).
Tenants normally only resort to Agreements to Terminate when the Notice of Termination procedures (above) are unavailable because they want to terminate the tenancy before the applicable notice period can run, or because they want to "break" a term lease.
In these cases it is common for landlords to require a cash payment by the tenant in an amount based on the tenant's legal exposure for an unpaid rent claim (ie. rent for the balance of a term lease or over any applicable notice period). Unquestioning payment by a tenant of such demands is usually unwise, especially if the amount is substantial. Even if the tenant is sued for the unpaid rent over the balance of the term, the amount of such a claim is subject to reduction by the landlord's duty to mitigate (ie. to reduce their loss by re-renting the premises) - that is, if the landlord goes to the trouble and expense of initiating a formal legal claim.
Particularly, with the under-supply of rental housing in Ontario (at 2019) and the high rents that this is causing, landlords can normally fully mitigate a broken lease, even to the extent of profiting from it. I would not expect to see any current landlord lawsuits for broken leases now, or at least none that are successful.
(d) Pre-Obtained Tenant "Notices of Termination" and "Agreements to Terminate" Are Void
Landlords have in past tried to circumvent the operation of the 'automatic renewal' provisions established in previous L&T statutes (and continued in the RTA) by requiring tenants to give them a suitably-dated Tenant's Notice of Termination or Agreement to Terminate at the beginning of (and as a condition of granting) the tenancy.
Therefore (and with some exceptions) the RTA voids such "pre-obtained" Tenant's Notice of Termination [Act s.37(4)] or Agreements to Terminate [Act s.37(5)] if they are given:- at the time the tenancy agreement is entered into; or
- as a condition of entering into the tenancy agreement.
Exceptions to this rule are: - Post-Secondary Student Residences [see Ch.2, s.7: "Special and Exempt Premises: Post-Secondary Educational Residences"], and
- Care Homes [see Ch.2, s.3(c): "Special and Exempt Premises: Care Homes: Care Home Tenancy Agreements"]
(e) Landlord's Applications to Terminate and Evict Based on Tenant's Notice to Terminate or Agreements to Terminate
. Overview
Landlord applications to the Board to terminate and evict based on a tenant's Notice of Termination or an Agreement to Terminate may be made without notice (ex parte) to the tenant (that is, the Notice or Agreement are viewed as dispensing with the need for notice) [Act s.77(1)].
Form L3: Application To Terminate a Tenancy - Tenant Gave Notice or Agreed to Terminate the Tenancy
Such applications may also include requests for the "ancillary orders" discussed below in s.4(g) "Ancillary Landlord Remedies".
. Comment on "Without Notice" Rule
While it can be argued that requiring the landlord to serve a Notice of Application on the tenant is unnecessary where the parties have agreed to termination - or where the termination was initiated by the tenant - that is not always the case. A tenant can be severely prejudiced by lack of notice of the Board application. A fairer procedure would be to advise the tenant of the Board proceeding in any event. Surely one is entitled to notice of a formal legal proceeding being commenced against them - if only to guard against the possibility of fraud.
. When Such Application May be Made
The Act is silent regarding when such an application may be commenced, leaving it open to the landlord to make it before the effective termination date in any Notice or Agreement [which is the "normal" rule: Act s.71]. However in the normal course (just to save wasted effort) landlords would not make an application until the tenant had demonstrated a clear intention to overhold, either by actual overholding or by expressed intention.
In any event no such application may be made more than 30 days after the effective date of termination [Act s.77(3)].
. Application Procedure
Such applications must be accompanied by "affidavit verifying the Agreement or Notice of Termination, as the case may be" [Act s.77(2)]. A copy of the Agreement to Terminate must be included with the application, commonly attached to the affidavit as an exhibit [Reg s.53, clause 4]. Note:
A similar duty to include a copy of the tenant's Notice of Termination with the application is less clear in law [due to ambiguity in Reg s.53, clause 1], however it is a common sense requirement that should be demanded by the Board. In any event, including a copy will greatly alleviate any anxiety that the Board has over issuing an ("ex parte") over-the-counter order terminating the tenanct and evicting the tenant (below). . Ex Parte Orders
Given that this type of Board Application is made without notice to the tenant, the Board may issue an "over the counter" Order terminating and evicting the tenant immediately on receipt of the application, without hearing [Act s.77(4)]. However such Orders cannot be effective prior to the effective date of termination set out in the Notice or Agreement, as the case may be [Act s.77(5)].
It is Board policy to serve a copy of the ex parte Order on the tenant [see Ch.14, s.6(e): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Service of Notice of Decision"].
. Motion to Set Aside
Another wasteful consequence of the 'without notice' rule for such applications is the necessity for 'set aside' procedures when tenants - who wish to dispute the matter - later discover their plight.
In such cases, the tenant may move within 10 days after the Order is issued (not "served") by way of "motion" [see Ch.13, s.13: "General Board Procedures: Motions"] to the Board to set aside such order. Notice of Motion shall be served on the landlord [Act s.77(6)].
Form S2: Motion to Set Aside an Ex Parte Order
The filing of such motion with the Board automatically "stays" (suspends) the enforceability of such order [Act s.77(7)]. Procedures for the issuance and filing of "stays" (suspensions) of Orders pending the outcome of set aside motions are discussed in Ch.14, s.7(f) ["Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement: Stays"].
On such motion the Board may, after hearing [Act s.77(8)]:- set aside the order terminating and/or evicting the tenant if it finds that the Agreement was not in fact made, or Notice was not in fact given;
- set aside the order terminating and/or evicting the tenant if "satisfied, having regard to all the circumstances, that it would not be unfair to do so", or
- lift the stay, immediately or at a future date (which has the effect of upholding the original order of termination and/or eviction).
(f) Tenant Applications Involving Termination
Termination can also be ordered as ancillary relief (along with orders for other tenant relief) on a tenant's Application to assert their "tenant's rights" [see Ch.3, s.5: "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications].
Tenant applications to terminate (along with other remedies against) their sub-tenants are discussed in Ch.8, s.2: "Other Termination Procedures: Application to Evict an Overholding Sub-tenant".
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